PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           29 December 1999                   
	DOCKET NUMBER:   AR1999029672

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Christopher J. Prosser		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

3.  The applicant states that he worked as a U. S. Army Criminal Investigation Command (CID) informant.  When they would not help him when his life was threatened, he went into hiding.  He turned himself in.  He was hoping the Army would help him, but he was arrested, tried and court-martialed.  He provides no supporting evidence.

4.  The applicant's military records show that he enlisted in the Regular Army on 28 June 1976 for 4 years.  He was honorably discharged on 27 December 1979 for the purpose of immediately reenlisting on 28 December 1979.  

5.  On 20 October, 24 October and 3 November 1980, the applicant accepted non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice for failing to go to his appointed place of duty.

6.  On 21 January 1981, court-martial charges were preferred against the applicant charging him with being absent without leave (AWOL) from                   5 November 1980 to 21 January 1981.  On 3 February 1981, he was additionally charged with failing to go to his appointed place of duty and absenting himself from his unit.

7.  On 4 February 1981, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation      635-200, Chapter 10 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He elected not to submit a statement in his own behalf.

8.  On 20 March 1981, the appropriate authority approved the request and directed the applicant receive a discharge UOTHC.

9.  On 15 April 1981, the applicant was discharged with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, discharge in lieu of trial by court-martial.  He had completed 4 years, 5 months and 8 days of creditable active service and had 151 days of lost time. 

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.

11.  On 23 April 1986, the Army Discharge Review Board denied the applicant’s request for an upgraded discharge.

CONCLUSIONS:

1.  The applicant was not court-martialed.  He voluntarily requested discharge and his voluntary request for separation under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress.  He could have demanded trial by court-martial where his alleged work with the CID could have been brought up as extenuating circumstances.  Absent that, he could have submitted a statement with his request for discharge explaining why he went AWOL.  He did neither.  

2.  It would not be appropriate to change the records to show that the applicant was discharged honorably from the reenlistment commencing on 28 December 1979.  However, it appears that his honorable discharge of 27 December 1979 should be considered as having been issued as a complete and unconditional separation.  The circumstances of his honorable discharge on 27 December 1979 may work an injustice upon him by depriving him of consideration for certain VA benefits for the preceding period of service.

3.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was eligible for a complete and unconditional separation from the military service at the time of his honorable discharge on 27 December 1979.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__gdp___  __clg___  __cjp___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			George D. Paxson
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999029672	
SUFFIX		
RECON		
DATE BOARDED	19991229	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19810415	
DISCHARGE AUTHORITY	AR 635-200, Ch 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.